David French

Yesterday, June 28, the Supreme Court ruled in Christian Legal Society v. Martinez that a university could require a Christian student group to open its voting membership and leadership to those who disagreed with the group’s statement of faith or refused to abide by its code of conduct.  The Court upheld Hastings College of Law’s “all-comers” policy for student groups, a policy that requires each student group on campus to be open to every student.  Under such an all-comers policy, Jewish groups would be open to Muslim leadership, African-American groups would be open to white supremacists, and a Prius club would have to be open to Nissan Titan owners like, well, me.

It was hardly surprising to see the Court’s most reliably liberal members (Justices Ginsburg, Sotomayor, Stevens, and Breyer) rule against the Christian group.  They often have an expansive view of government power – including when government actions implicate fundamental First Amendment freedoms.  And in this case, these justices characterized the Christian Legal Society’s efforts to meet in empty classrooms and to share their faith on campus as nothing more than an effort to enjoy various government benefits.

But four justices are not enough.  To fashion a five-vote majority, the Court’s liberal wing had to win over Justice Kennedy.

Unfortunately, they succeeded.  Because of the critical importance of Justice Kennedy’s vote, his brief concurring opinion is arguably the most important opinion in the case, and that opinion contains a poison pill for religious liberty.  Reading the entire concurrence, one gets the impression that Justice Kennedy simply did not like the Christian Legal Society at Hastings, viewing its effort to maintain doctrinal fidelity through a statement of faith with extreme suspicion, if not disgust.  Kennedy dismisses CLS’s convictions in a single sentence: “The era of loyalty oaths is behind us.”

This sentence is Exhibit A for the notion that Supreme Court justices substitute their own highly individualized and sometimes prejudiced judgments for the judgment of individual citizens.  The era of loyalty oaths is behind us?  Really?

David French

David French is an Iraq War veteran and serves as Senior Counsel for the American Center for Law and Justice. He is the author of "Home and Away: A Story of Family in a Time of War," a memoir of his journey from defending America's liberties in court to defending them on the battlefield.